Tenth Circuit, Aided by Terrible Briefing, Gets It Wrong

Brigham Young on Sexual Propriety

I have a soft spot for the 10th Circuit.  I started practicing in Kansas, which is in the 10th, and I spent several years reading opinions that came out of Denver.  It was always my impression that the 10th Circuit, while not particularly famous for spectacular legal reasoning, has more than its fair share of common sense.  A decision that came out last week, however, has me rethinking my opinion.

The case is Doctor John’s v. Roy City, Utah, and it involves a store that sold adult videos, books and novelties that opened near Salt Lake City in a town that, at the time, didn’t have any specific statutes governing adult businesses.  After the store opened, however, the city enacted a special licensing process for SOBs and asked the store to file for a new business permit.

Doctor John’s didn’t like the idea of having to reapply for the more restrictve SOB license, so it sued in Federal Court, arguing that the statute was unconstitutionally vague and was an impermissible restriction on free speech.  In its decision, the 10th Circuit held that the restrictions on SOBs were “content neutral” and that the city had an “significant interest” that was served by the “narrowly tailored” licensing requirements imposed by the city.  (These are some great legal phrases.  If you want to see my explanations for them, you can read it here.)

I am disappointed with the 10th Circuit’s take on all three issues.  First, I can’t buy the idea that restrictions on businesses that sell sexually-explicit materials are “content neutral.”  Yes, I know that virtually all of the circuits have held the same thing, but that doesn’t make it logical.  The restriction does not apply to all books or all videos.  It only applies to books and videos with sexual content.  If a city passed a law restricting stores that sold religious books and videos, no one would call the law “content neutral.” But since the content involved is sex, courts engage in the delightful fiction that the law doesn’t discriminate based on content.

The “content neutral” prong is annoying, but not unexpected.  The 10th Circuit’s ruling on the other two prongs, however is pretty alarming.  In order to justify its licensing restrictions, the city relied on the old saw that sexually oriented businesses have the “secondary effect” of “increasing crime in the area.”  The big problem with this position, however, is that there are exactly zero studies that deal with the alleged secondary effects of “take away” stores that only sell items for use off the premises.

Doctor John’s briefing pointed the absence of any studies on its type of store, but, in a shocking move, the 10th Circuit inexplicably ruled that the facial inapplicability of the city’s study didn’t matter.  Instead, the Court said, because the city had some studies about the alleged effects of SOBs (of other types, in other cities) it was up to Doctor John’s to prove that the studies didn’t apply.  So much for my theory that the 10th Circuit is a court that uses common sense.

First of all, we are talking about the First Amendment.  Since the city is seeking to restrict speech, it should be the city’s burden to prove that the studies that it is relying on apply to Doctor John’s.  Secondly, the “secondary effects” studies have always been based on the idea that SOBs attract antisocial men to the area and then induce them to commit crimes by whipping them into a sexual frenzy by displaying providing sexual entertainment.  Both sides admitted that Doctor John’s did not provide on site entertainment, and Doctor John’s presented evidence that almost half of its customers were women.  On its face, this evidence makes a pretty strong case that the studies don’t apply to Doctor John’s.

To understand the craziness of the 10th Circuit reasoning, let’s take sex out of the equation.  Suppose that Blockbuster wants to open a store in a shopping center, but the city’s zoning ordinances don’t allow any “purveyors of motion picture entertainment” to be located in retail areas.  Blockbuster challenges the ordinance in court, and the city defends itself by pointing to studies showing that movie theatres cause traffic congestion and should be located away from retail areas.

No reasonable court would ever expect Blockbuster to “prove” that the movie theatre studies don’t apply to its retail video rental stores.  But that is essentially what the 10th Circuit did to Doctor John’s.

My last complaint about with the 10th Circuit’s decision is that it assumes—without any support that I can find—that the proposed restrictions in the city’s licensing requirements are narrowly tailored to address concerns about the secondary effects of adult businesses.  The licensing requirements, however, consist primarily of restrictions on operating hours and requirements that the owner and employees obtain licenses from the city.  Even if we assume—as the “studies” cited by the city claim—that the customers of SOBs are more likely to commit crimes in the area, licensing owners and employees would not have any effect on the actions of customers.  I don’t see how a statute can be “narrowly tailored” when it doesn’t even address the alleged secondary effect that it is based on.

Before I am too hard on the 10th Circuit, I have to add that the briefing in the trial court in this case was not stellar.  I logged onto Pacer (the Federal Courts’ electronic filing system) and tried to follow the summary judgment filings in the case, and I eventually gave up.  It does not appear that Doctor John’s ever filed an expert witness report (which would be a necessity in this case), and I counted at least three different motions for summary judgment (which is a lot for any case, and certainly a lot when you are already representing an unpopular client).  Bad briefing makes bad law, and judges aren’t going to overlook sloppy lawyering when you represent an adult business.